Hate Crimes
The House is considering new legislation that, as best I can tell, provides state governments with grants for combating hate crimes and mandates additional penalties for criminal acts motivated by racial, religious or sexual animosity. This is not a debate I’m very familiar with, and my political “team” – such as it is – generally comes down against this approach to enforcement, but I’m fairly comfortable with the legislation. A few thoughts:
1.) I think that a hate crime is materially different from other criminal activities. I imagine that theft or physical assault is pretty bad under any circumstances, but a crime perpetrated with the intent of harassing or intimidating a particular group seems more traumatizing than a random attack, particularly if said group has endured a history of violence and repression.
2.) Having said that, should our courts be in the business of quantifying psychological harm? Civil courts already assign monetary compensation using similar criteria, so I’m inclined to think that jurors and judges are capable of fairly assessing the psychological impact of an attack motivated by ethnic, religious or sexual animosity. However, the legislation’s sentencing guidelines don’t leave a lot of room for discretion.
3.) The idea that assessing additional penalties for hate crimes will somehow limit free speech is scary, but I don’t see how that could plausibly happen. I think there’s a clear distinction between assigning more severe punishment for activities that are already criminal but have the added distinction of being motivated by hatred and criminalizing objectionable speech. Committing a criminal act is a precondition for hate crimes penalties. As long as you don’t commit a crime, I’m not sure how this legislation impacts your ability to speak freely.
4.) Given the nature of our pluralistic society, crafting legislation to protect previously-marginalized groups from intimidation and violence seems like a worthy goal.
As I said, my thoughts on this topic are pretty unformed, so I’m quite willing to reevaluate things. What do you all think?
UPDATE: Jacob Sullum is less charitable, noting that the bill federalizes a significant category of law enforcement. This is a valid concern, though I’m less impressed by his contention that hate crimes legislation outlaws ideas. Committing an actual crime is a necessary (though not sufficient) condition for prosecution. The courts routinely make determinations related to criminal motivation and mental health. If deterring racial, religious or gender animosity is a compelling state interest, I’m not sure why remedies like hate crimes legislation shouldn’t be seriously considered.
UPDATE II: Andrew Sullivan flags this Washington Times op-ed, which doesn’t strike me as very persuasive at all:
House Minority Leader John Boehner, Ohio Republican, told an editorial board meeting at The Washington Times that the hate-crimes bill makes him “want to throw up,” and noted that it doesn’t make sense to prosecute “what we think [criminals] were thinking as opposed to what they did.”
Mr. Boehner’s point is right on the mark. But the motivation isn’t about punishing crime as much as it is about controlling certain thoughts and views. Once homosexuals become a special class protected by hate-crime legislation, the back door is open to prosecuting those who speak out against homosexuality and same-sex marriage. Yesterday’s House vote was really about creating thought crimes to further the liberal agenda.
Slippery slope arguments shouldn’t be dismissed out of hand, but there needs to be some explanation of how we’re actually going to slip down the slope in the first place. I see no causal relationship between assessing additional penalties for crimes motivated by hatred and criminalizing free speech.
Incidentally, we already prosecute criminals “for what they think.” If pre-meditated murder is worse than unplanned killing, it seems perfectly reasonable to take a similar approach to attacks motivated by racial, religious or sexual hatred.
I very much like the idea of there being a distinction between a guy just mugging another guy because he wants a wallet and a guy mugging another guy because he doesn’t like (slurs).
I very much see the difference between spray painting “Eat At Joe’s” on the side of a (religious building) and spray painting “(slurs) die” on the side of one.
I’m 100% with you up to that point.
My problem resides with the faith that the government will be able to make the right decisions about these things. There are dozens of potential excesses… this group is assumed to engage in hate crimes more often than other groups and so there becomes a presumption of guilt whenever a member of that group gets prosecuted. Or perhaps every crime between two people of different pigmentation get “hate crime” stapled to it as a prosecutorial tool to get a plea bargain. Or that this group tends to get better legal representation than other groups… and so hate crime laws only apply to the groups that don’t tend, as a whole, to get decent legal representation.
It seems to me that there are many more potential downsides in the implementation…
But, for the record, I totally see that there is a difference between a mere mugging and a (member of this group) beating up a (slur).
It’s tough.Report
Jay Bird –
All valid concerns, though I don’t think any of those issues are unique to hate crimes prosecution per se. Moreover, we seem to have found a workable approach in civil court when assessing emotional damages – why not apply something similar to hate crimes?Report
Is the additional damage done by a hate crime mugging in comparison to a run-of-the-mill mugging not sufficiently addressed by civil courts?Report
To be honest, I’m not sure.Report
Will – Can you clarify where you think this legislation asks courts to quantify psychological harm? I don’t see any reference to that in the legislation.Report
As best I can tell, Mark, the legislation assigns set penalties for hate crimes. My (admittedly inarticulate) second point was that while I don’t find the idea of assessing criminal penalties for psychological harms terribly objectionable, this particular piece of legislation doesn’t leave a lot of room for discretion.Report
Jaybird – As a practical matter, no. Individuals who are sued civilly after being convicted (or, for that matter, acquitted) criminally are usually not going to have the resources necessary to pay large compensatory damages awards. Since it’s an intentional tort, there’s also not going to be any insurance coverage.Report
Will – Gotcha. I can think of a couple answers to your question.
First, the purpose of criminal penalties is not to compensate the victim but to punish the criminal. Explicitly requiring courts to consider the emotional damage to the victim is problematic because it punishes criminals differently if they have the misfortune of attacking someone who happens to be unusually fragile emotionally or have the good fortune of attacking someone who is unusually strong emotionally. In a civil context, there’s nothing wrong with having different awards because the point of compensatory damages is that the victim should not be forced to bear the costs of the defendant’s tortious acts; this logic doesn’t apply where the sanction is purely supposed to be punitive.
Second, as a practical matter, it looks like the legislation does give judges pretty wide discretion over sentencing here, allowing sentences of up to 10 years in most cases, and of unlimited length in cases that involve certain particularly heinous underlying offenses, with no mandatory minimums. That is comparatively a pretty wide amount of discretion as far as criminal statutes go, at least in my limited experience.Report
A couple of observations, from a former prosecutor and current defense attorney:
1. In response to Mark Thompson’s comment, to the extent that this bill amends or extends existing federal criminal law, sentences will still be guided by the U.S. Sentencing Guidelines — while those are no longer mandatory, they still provide a rough guide of reasonableness that most district court judges follow and most appellate courts look to in review.
2. Despite the oft-expressed concern that hate crimes laws criminalize thought, I don’t think they are meaningfully distinguishable from a vast array of previously existing laws. Many, many other laws have long required an inquiry into a defendant’s intent and mental state — intent to defraud, specific intent to do various things, knowledge of falsity, etc. etc. etc. Proving — or refuting — malevolent racial intent is not qualitatively different in any way that impacts criminal practice, in my experience. Moreover, we already consider motive and intent in all sorts of variations on murder or assault: we impose different penalties depending upon whether a murder was planned, spontaneous, or in the heat of sudden passion, we impose different penalties depending on the method used (poison, lying in wait, etc.), and we impose different sentences for assaults on different people. Assaulting a federal official — because you know they are a federal official — comes under a different statute and a higher penalty than assaulting a “civilian” under federal jurisdiction, based on a social judgment that the former mental state is more dangerous than the latter and the former assault more threatening than the latter.
3. In my experience and observation, prosecutors are very cautious about charging hate crimes and require a higher level of proof than of other crimes. When I used to refer potential hate crime cases to the DA (because they lacked a necessary federal component), few made the cut — but the DA was prepared to charge plain-vanilla assaults even on fairly weak evidence. This has actually caused quite a bit of irritation in some interest group communities.
4. The feds have been prosecuting crimes that are indistinguishable from hate crimes — like civil rights offenses — without the system collapsing or free speech being impinged. Usually the evidence of motive is simply not subject to multiple interpretations. When I prosecuted a pack of loser tweaker skinhead wanna-bees for harassing a multiracial family, I had racist tattoos, racist posters, shouted racial epithets, and “get our of our neighborhood, [epithet]” evidence. I’ve never seen a case where the evidence was “well, he got in a bar fight with that black guy, and I once heard him say he opposed affirmative action, so it must be a hate crime.”Report
Ken –
Thanks for the informative comment.
Mark –
Ken’s response pretty much sums up my feelings on the issue. If crimes motivated by sexual, racial or religious animosity are materially worse than crimes committed for more mundane reasons, it stands to reason that the criminals responsible ought to be punished more severely. As Ken says, a defendant’s motive and state of mind are frequently considered in criminal court – why not extend such considerations to hate crimes?Report
Thanks, Ken. I can’t believe I forgot about the Sentencing Guidelines!
As for the speech implications of this legislation, your points 2 and 4 line up pretty well with my admittedly limited experience. I’d also add that whatever one’s opinion of employment discrimination laws, you would think that they would present far more of a free speech issue than hate crime laws since they seek to punish and prevent (albeit in a civil rather than criminal context) otherwise perfectly allowable behavior purely on the basis of intent. Yet we’ve had such laws on the books for decades without the First Amendment being brought to its knees.
On your third point – very interesting. Out of curiosity – is there a reason why prosecutors are hesitant to charge hate crimes even though they’re usually willing to be pretty quick to charge most other crimes?Report
I’m no fan of Mark Stein, but this hasn’t been working out so well in your new found home (Canada). Most of the tribunals have been moving away from the Canadian version, with some Provinces reading the legislation very narrowly. I think it’s a grand idea. It just doesn’t seem to play well in reality. With the thin skull defense, it encourages over reaction and doesn’t blend well with freedom of speech.Report
Cascadian, I don’t think that Canadian laws are comparable to the American proposed laws. First, Canada’s rather (forgive me) anemic speech protections are explicitly made subject to a balancing test; First Amendment tests are far tougher to meet. Second, the tribunals you mention (which I have vigorously criticized before) are empowered to punish not just actual assaults, but hurt feelings.
Mark: I suspect that prosecutors are more hesitant to prosecute hate crimes cases because they are more high-profile, and a loss is more damaging and embarrassing.Report
Cascadian –
Again, I just don’t see how hate crime laws spill over to free speech. Committing a crime is a precondition for prosecution. If you don’t commit a crime, you can say whatever the heck you want.Report
Ken: Wow, that’s a long post you link to. I’m getting ready for date night with the Mrs. so I’ll have to pour through it later. Canadian law (or at least BC law) on this matter has been doing some drastic changes in the last year or so. I’ll give you some links when I can get back to this.Report
Will, do you have any statistics related to “hate” crimes perpetrated against racial, sexual, religious, or ethnic minorities?Report
Bob Cheeks –
I don’t – as I said above, this is not an issue I’m very familiar with. Does the incidence of hate crimes matter, though? If hate crimes are worse than “regular” crimes, we should prosecute them more severely regardless of how frequently they occur.
Then again, if they don’t occur particularly frequently, perhaps there’s no need for additional deterrence.Report
“If deterring racial, religious or gender animosity is a compelling state interest”
If, by animosity, you mean “acts”… of course it is.
If, by animosity, you mean “thoughts” or “ideas”… are you not, in fact, supporting thoughtcrime laws and calling them laws in support of a compelling state interest?Report
Jaybird –
I mean acts motivated by hatred. Policing our thoughts is not what I have in mind.Report
Fair enough. I just wanted to hammer down what you meant by “animosity”.
As I tend to see the word used, it’s generally an internal state, rather than the manifestation of an internal state.
If you mean the latter… sure. I’d say that is much, much less creepy.Report
Will, I was just wondering if this is a “significant” problem or is it the case that one violation is sufficient. I believe Jaybird is correct in implying the close proximity of the slipppery-slope of thought crime violations.Report
Will,
One more thing. Can there ever be a “hate” crime perpetrated against white people?Report
Bob Cheeks –
As I understand it, the legislation attaches severe penalties to any crime motivated by racial hatred. I see no reason why a racially-charged attack against a white person wouldn’t fall under this rubric.Report
The notion that hate crimes laws prohibit violence against minorities, but not violence against whites, is a frequent but utterly baseless talking point. I challenge anyone to find a bias crime law that, by its terms, criminalizes (or enhances penalties for) bias crimes against only select racial/ethnic/religious groups. In fact, as Will suggests, the language of bias crimes laws generally prohibits specific acts when motivated by racial, religious, etc. animus.
In fact, the leading U.S. Supreme Court case on hate crimes, Wisconsin v. Mitchel, involved black-on-white violence.
In fact, I recall seeing a study that hate crimes are disproportionately prosecuted against minorities targeting whites — I’ll try to find it.Report
Ken – I think you’re referring to the 2007 FBI report on hate crimes, but I may be wrong.Report
“hate crimes are disproportionately prosecuted against minorities targeting whites”
Is this a reason to oppose hate crimes or not?Report
“Is this a reason to oppose hate crimes or not?”
It’s a reason. However, inasmuch as disproportionate prosecution and punishment is found for a vast variety of crimes and penalties, I’m not sure it’s a good reason.Report
While “disproportionate prosecution and punishment” for, say, murder is not particularly a reason to oppose laws against murder, I’m pretty sure that adding additional disproportionate prosecution and punishment for things that already have disproportionate prosecution and punishment is a step in the right direction.Report
Will, Thanks for straight answers and Ken as well! I continue to be concerned that “hate crimes” lead to thought crimes…given human nature and sundry psychopathological disorders.Report
It appears that the definition of hate crime is one where the victim is targeted because of their membership in a protected group. If I’m a fraud but I only target members in my own ethnic group would I be open to these additional charges? Wouldn’t any illegal activity that targeted a particular population be open to these charges? Do the federal grants provide unwanted incentive for financially strapped municipalities to find applications for this law?Report
Cascadian –
Presumably there would have to be some evidence that your criminal activities were actually motivated by racial hatred.Report
Where do you read that?Report
Update #2 gives me even more pause… because it seems like the issue is no longer one of “does this policy work” but one of “do you support the protection of (oppressed group) or not???”
Support of hate crimes is seen as support for the protection of (oppressed group).
Opposition to hate crimes is seen as support for further oppression of (oppressed group).
And you are either part of the solution or part of the problem.
Which is a position that always rankles me.Report
It’s too bad that it is framed that way. I disagree with the framing. There are principled and colorable reasons to oppose hate crimes laws (Sullivan, for instance, is hardly opposing them because he wants to bash gays), and equally principled and colorable reasons to support them.Report
That depends upon how carefully the law is drafted.
Lots of criminals target their own ethnicity or religion for criminal acts — not out of hate, but because they are running affinity scams, or because they are taking advantage of some cultural trend (like the home invasion robberies of Vietnamese immigrants in the 70s and 80s, targeting families who mistrusted banks and thus kept wealth in their homes). However, I doubt many of these would meet the definitions of hate crimes laws, given how most hate crimes laws are drafted. First, most hate crimes laws address violent crime and not fraud or theft, and most affinity-group crime is property crime. Second, many hate crimes laws require proof that the defendant was motivated by animus towards the victim. That would exclude affinity-style targeting. Other laws — like the one linked in this post — don’t mention animus but require a showing that the defendant assaulted the victim because of the victim’s race/religion/etc. A prosecutor could argue that applies to an affinity-style crime, but it would be a tough argument — it’s the difference between saying that a defendant set out to commit a crime and chose the victim based on his race, and saying that the defendant decided to commit a crime because of the victim’s race.Report
I’m curious, how do people who oppose hate crimes react in relation to distinctions/gradations of murder based on for example intent or premeditation? Should these gradations also be abolished because we’re trying to police the thoughts/motivations behind killings? I’ve yet to find anyone who actually thinks we should stop distinguishing between premeditated murder, voluntary manslaughter etc. is a good idea, but aren’t those too also “government making a determination of thoughts”?Report
“I’ve yet to find anyone who actually thinks we should stop distinguishing between premeditated murder, voluntary manslaughter etc. is a good idea, but aren’t those too also “government making a determination of thoughts”?”
This reminded me of a tangent.
Back in my women’s studies days, there was an argument that there was much disparity between husbands killing wives and wives killing husbands. A spousal murder of husband killing a wife was usually 2nd degree murder but the other way around was usually 1st degree.
That’s because a husband killing his wife was usually a case of “I threw her down the stairs plenty of times, she ain’t never died before” but the reverse was usually “she bought a gun, she bought bullets, she bought whiskey, she waited for him to pass out, then, IN COLD BLOOD, she KILLED him! This shows intent! This shows a cold-blooded PLAN!”… which is usually enough for 1st Degree in most states.
My professors argued that this was unfair and spousal murder should be its own category with no more of this disparate impact of prosecution.
So… there. That’s the tangent.Report
The way I read this bill, neither hate nor violence is required. Any felony, including spam and libel, that targets a protected group would qualify.Report